FEDERAL OSHA RELEASES EMERGENCY TEMP STANDARD: VACCINATION & TESTING FOR EMPLOYERS W/ 100+ EMPLOYEES
Author:
Solal Wanstok
November 10, 2021
On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (ETS) labeling COVID-19 as an occupational hazard in the workplace. This ETS provides much-needed guidance for employers with 100 or more employees.
Under the new ETS, covered employers must either:
- Require all employees to be vaccinated (and require all employees who qualify for a medical or religious exemption to wear a face covering and provide proof of a negative COVID-19 test on a weekly basis); or
- Provide employees with the choice of showing either:
- proof of vaccination; or
- proof of a negative COVID-19 test on a weekly basis
The ETS applies to private sector employers with 100 or more employees. It does not apply to employers already covered by previous rules for federal contractors and subcontractors, healthcare employers that are covered by the interim final rule released by the Centers for Medicare and Medicaid Services (CMS), and those covered by OSHA’s Healthcare ETS issued in June 2021.
What counts as 100 employees or more?
OSHA believes that employers with 100 or more employees will be able to meet the standard’s requirements promptly, whereas smaller employers may not be able to do so without undue disruption. According to OSHA, this threshold will allow the ETS to reach two-thirds of all private-sector workers in the nation and, most importantly, the largest facilities where the most deadly outbreaks of COVID-19 can occur.
To determine the number of employees, employers must include all employees across all U.S. locations, regardless of where they perform their work. Employers must include part-time employees, temporary and seasonal workers, minors, and fully remote employees. However, independent contractors do not count towards the company total.
Franchisors and their franchisees are separate entities for coverage purposes. Therefore, a franchisor only counts “corporate” employees, while a franchisee only counts employees of its individual franchise location (as long as it is independently owned and operated).
Employees placed by a staffing agency do not count towards the host employer’s total. Only the staffing agency would count these employees for purposes of the 100-employees threshold.
On a multi-employer worksite (e.g., a construction site), each employer represented (e.g., the host employer, the general contractor, and each subcontractor) only needs to count its own employees.
What are the obligations of covered employers?
Covered employers must implement a vaccination policy making all employees (including new hires) subject to mandatory vaccination or weekly testing. Employers should consider training employees on the policy and related procedures.
Covered employers must also maintain a roster of each employee’s vaccination status and preserve acceptable proof of vaccination for each employee. Acceptable proof of vaccination includes the following documents:
- Record of immunization from a health care provider or pharmacy;
- Copy of the COVID-19 Vaccination Record Card;
- Copy of medical records documenting the vaccination;
- Any other form of attestation or proof that the employer used to ascertain employee vaccination status prior to the effective date of the ETS;
- If an employee is unable to produce acceptable proof of vaccination, a signed and dated statement by the employee:
- Attesting to their vaccination status (fully vaccinated or partially vaccinated);
- Attesting that they have lost and are otherwise unable to produce proof required by this section; and
- Including the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
- The employee should include, to the best of their recollection, the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s)
These records (the roster and vaccination proofs) are considered employee medical records and must not be disclosed except as required or authorized by law. They must be made available within one business day of a request by an employee or an employee representative, and within 4 business hours of a request by the Assistant Secretary of Labor for OSHA.
Employers must also report to OSHA:
- Each work-related COVID-19 fatality no more than 8 hours after it becomes known to the employer
- Each work-related COVID-19 in-patient hospitalization no more than 24 hours after it becomes known to the employer
Are all employees subject to the vaccination—or testing—requirement?
No. The requirements of the ETS do not apply to employees who work exclusively outdoors or who do not report to a workplace where other individuals (e.g., coworkers, customers) are present.
Employees working remotely 100% of the time are not subject to mandatory vaccination or testing, but those who report to the workplace at least once every 7 days must either show proof of vaccination or be tested for COVID-19 on a weekly basis.
Employees who report to the workplace less than once every 7 days must be tested within 7 days of their return to the workplace (and provide documentation of the test result to their employer prior to their return).
Finally, the ETS exempts all employees who qualify for a medical or religious exemption from mandatory vaccination. Employees who are legally entitled to a reasonable accommodation because they have a disability that conflicts with the vaccination requirement are also exempt. While they may not be required to get vaccinated, exempt employees must wear a face covering and provide proof of a negative COVID-19 test on a weekly basis.
What is the deadline to implement the requirements of the ETS?
Covered employers must either ensure their employees are fully vaccinated or commence weekly testing by January 4, 2022. Under the ETS, “fully vaccinated” means two weeks after a second dose in a two-dose vaccination regimen or two weeks after a single-dose vaccine.
Under the ETS, the second dose of a two-dose regimen must be received at least 17 days after the first dose. So, to comply with the deadlines and avoid mandatory testing, employees must receive the first shot for a two-shot vaccine by December 18, 2021. The last date for an employee to receive a one-dose vaccine is January 4, 2022.
In an effort to harmonize competing vaccine mandates, the White House has specified that “[e]mployees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.”
Employers must comply with all other provisions of the ETS (e.g., face coverings, recordkeeping, removal of COVID-positive employees, etc.) by December 5, 2021.
Are employers required to provide paid time to support employee vaccination?
Yes. Employers must provide up to 4 hours of paid time (including travel time) at the employee’s regular rate of pay for each primary vaccination dose (excluding booster doses). This paid time cannot be offset by any other leave that the employee has accrued (e.g., paid sick leave, vacation time, PTO). In addition, employers must provide “reasonable” paid sick time (the ETS does not mention a particular amount of time) to recover from side effects experienced following each primary vaccination dose.
Employers are not required to pay for costs associated with vaccination (e.g., gas money or public transportation costs for travel to vaccine sites), testing, and face coverings.
The ETS does not prohibit employers from taking on these costs, leaving the final determination to their discretion. Note, however, that other laws, regulations, or collective bargaining agreements may impose these and other payment obligations on employers.
What information must covered employers provide their employees?
Employers must inform each employee of the following:
- COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated, by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html;
- The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, this ETS. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act; and
- The prohibitions of 18 U.S.C. 1001 and of section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation
Employer Takeaway
Employers should first determine whether they will permit weekly testing as an alternative to the vaccine requirement. They should then develop a COVID-19 policy that fulfills the requirements set forth above, and develop a process for collecting and preserving COVID-19 vaccination statuses and proofs of vaccination separately from employees’ personnel files. Importantly, employees who have tested positive for COVID-19 or who do not provide testing documentation as required should be removed from the workplace. Finally, employers should provide the required information to their employees as mandated by the ETS.